I can’t really speak to the relative dearth of quality
scholarship on the pro-choice side (though I agree with that assessment, even
as applied to some of the pro-choice authors Mike cites) but I can offer a few thoughts
on the relative lack of quality works on the pro-life side.

I would say that the relative lack of quality in pro-life legal
scholarship is due to the relatively small amount of pro-life legal scholarship
overall, and that this in turn is due to the enormous disincentives faced by
those potential pro-life scholars seeking to become law professors as well as those
academics seeking tenure, promotion, and advancement.

When I was first thinking about a career as a law professor,
I spoke with my teacher and mentor Mary Ann Glendon. She gave me a lot of helpful advice, e.g.
that I should be open to teaching in different parts of the country, that I
should identify the specific courses I would like to teach and think about how
I would teach them, etc. She also said that
no matter how enthusiastic I was about teaching, prospective schools would
judge my candidacy on how productive they thought I would be as a scholar so
that I should work hard to publish some law articles before entering the job
market. Here she warned me “Don’t write
about abortion. Your goal is to get
hired and most faculties will not hire someone who is pro-life. Write about something that interests you but
is not especially controversial. Indeed,
I would advise you not to write about abortion until after you have tenure and
are at a school where you could see yourself spending the rest of your career.”

Because I was acquainted with Mary Ann’s own writings on the
subject, and since I had written my third-year paper on abortion at Harvard
under her direction, I was somewhat puzzled by this advice. But she assured me that the bias in the
academy was enormous and a real impediment to entry into the profession.

I took her advice to heart and succeeded in obtaining a teaching
position. Moreover, as she suggested, I
did not begin to write on the subject until after I received tenure at a school
where I felt comfortable, knowing even then that it would likely foreclose some
career opportunities that might otherwise be open in the future. I have always been thankful for Mary Ann’s
guidance, and I have passed on this same advice to young lawyers who have
sought my counsel as they contemplate a career in law teaching.

As a faculty hiring committee member and chairperson I have reviewed
literally thousands CVs and AALS forms from prospective candidates. As I think other MOJ members will confirm, it
is quite common to see candidates with publications addressing abortion or some
related topic from the perspective of “reproductive freedom.”

From this, it is apparent that those on the pro-choice side
aren’t receiving the same advice that I was given. And why would they?! The number of schools where scholarship in
favor of the abortion license would count as a negative are very few indeed –
perhaps a handful. And it is,
unfortunately, not a problem at the vast majority of law schools that operate
under Catholic auspices – schools that downplay (with some honesty) their
Catholic identity as a meaningful presence in the intellectual life of the school
even as they champion academic freedom and openness to diverse points of view.

With few exceptions, the academic culture at secular schools
manifests either a well-trained indifference or a deep-seated contempt for the
pro-life message. (Of course this might
otherwise be described as exhibiting a latent fear of the pro-life point-of-view
and a kind of intellectual sloth bred by keeping uniform company with the
advocates of “choice”). The last two
major conferences on abortion, at Yale in October 2008 (see here) and at UCLA
in January 2013, just a few weeks ago (see here) are indicative of this phenomenon. Of all the individuals invited to speak at
these events, the number of scholars invited to speak who could plausibly be
described as “pro-life” is exactly zero.

A quick review of the law review article databases on SSRN
and Westlaw using “abortion” as the search term yields a large volume of
articles (1025 articles on Westlaw and 1069 on SSRN). Now, I haven’t read every one of these
articles. But, from a brief survey of
the titles, abstracts and author names, I would be extremely surprised to learn
that anything other than a relatively small percentage of these articles reflect
a pro-life perspective, and I would be even more surprised to learn that
anything beyond a tiny fraction of these articles are published in top ranked
journals. Even the examples that Mike
Moreland cites demonstrate this point.
While Reva Siegel and Jesse Hill publish in the Yale Law Journal, the Stanford
Law Review, and the Texas Law Review,
Mark Rienzi and Helen Alvare do not.

So if your ambition is to be invited to write on the topic
from a pro-life prospective, chances are you won’t be invited to speak at
conferences at elite schools like Yale and UCLA, and chances are you won’t be
published in the top journals at Stanford and Texas.

Good legal scholarship about abortion, like good academic
literature in any area, needs to be encouraged and cultivated. That there are only a few really good
articles in the fields of bankruptcy, civil procedure, contracts, tax, or
property each year means that there are several hundred more that are not especially
good or are only passable and workmanlike.
But professors continue to write in these fields not only because that
is where their interest lies, but because they are supported in this by their
colleagues and home institutions.

At the vast majority of law schools, this kind of support simply
does not exist for the intrepid young teacher who dares to publish an article
on abortion from a pro-life perspective.
In all likelihood that young law professor will keep his or her pro-life
cards close to the vest, and will instead devote his or her scholarly energies
to some non-neuralgic topic in his or her field that will be published and help
satisfy the requirements for tenure.
After tenure, there is promotion, and the possibility of moving to a
more desirable school, all of which work as a disincentive to writing on abortion
with pro-life sympathies.

So is it really a surprise to observe that this faculty
member, whose heart was with the pro-life cause when he or she became a
professor, never ventures into the scholarly debate surrounding abortion in his
or her written work? And without the
maturation of thought and the honing of one’s writing in the area by a larger
pool of scholars, is it really surprising to conclude that there is relatively
little good legal scholarship on abortion?